Local Rule 83.4: Discipline of Attorneys

83.4 Discipline of Attorneys

(a) The Chief Judge shall have charge of all matters relating to discipline of members of the bar of this Court.

(b) Any member of the bar of this Court who is convicted of a felony in any State, Territory, other District, Commonwealth, or Possession shall be suspended from practice before this Court and, upon the judgment of conviction becoming final, shall cease to be a member of the bar of this Court.

On the presentation to the Court of a certified or exemplified copy of a judgment of conviction, the attorney shall be suspended from practicing before this Court and, on presentation of proof that judgment of conviction is final, the name of the attorney convicted shall, by order of the Court, be struck from the roll of members of the bar of this Court.

(c) Any member of the bar of the Northern District of New York who shall resign from the bar of any State, Territory, other District, Commonwealth or Possession while an investigation into allegations of misconduct is pending shall cease to be a member of the bar of this Court.

On the presentation to the Court of a certified or exemplified copy of an order accepting resignation, the name of the attorney resigning shall, by order of the Court, be struck from the roll of members of the bar of this Court.

(d) Any member of the bar of the Northern District of New York who shall be disciplined by a court in any State, Territory, other District, Commonwealth, or Possession shall be disciplined to the same extent by this Court unless an examination of the record resulting in the discipline discloses 1. that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;

2. that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this Court should not accept as final the conclusion on that subject;

3. that this Court's imposition of the same discipline would result in grave injustice; or 4. that this Court has held that the misconduct warrants substantially different discipline On the filing of a certified or exemplified copy of an order imposing discipline, this Court shall, by order, discipline the attorney to the same extent. It is provided, however, that within thirty (30) days of service on the attorney of the Court's order of discipline, either the attorney or a bar association that the Chief Judge designated in the order imposing discipline shall apply to the Chief Judge for an order to show cause why the discipline imposed in this District should not be modified on the basis of one or more of the grounds set forth in this Rule. The term "bar association" as used in this Rule shall mean the following: The New York State Bar Association or any city or county bar association.

(e) The Court may disbar, suspend or censure any member of the bar of this Court who is convicted of a misdemeanor in any State, Territory, other District, Commonwealth, or Possession, upon such conviction.

Upon the filing of a certified or exemplified copy of a judgment of conviction, the Chief Judge may designate a bar association to prosecute a proceeding against the attorney. The bar association shall obtain an order requiring the attorney to show cause within thirty (30) days after service, personally or by mail, why the attorney should not be disciplined. The Chief Judge may, for good cause, temporarily suspend the attorney pending the determination of the proceeding. Upon receiving the attorney's answer to the order to show cause, the Chief Judge may set the matter for prompt hearing before a court of one or more judges or shall appoint a master to hear and to report findings and a recommendation. After a hearing and report, or if the attorney makes no timely answer or the answer raises no issue requiring a hearing, the Court shall take action as justice requires. In all proceedings, a certificate of conviction shall constitute conclusive proof of the attorney's guilt of the conduct for which the attorney was convicted.

(f) Any attorney who has been disbarred from the bar of a state in which the attorney was admitted to practice shall have his or her name stricken from the roll of attorneys of this Court or, if suspended from practice for a period at such bar, shall be suspended automatically for a like period from practice in this Court.

(g) 1. In addition to any other sanctions imposed in any particular case under these Rules, any person admitted to practice in this Court may be prohibited from practicing in this Court or otherwise disciplined for cause.

2. Complaints alleging any cause for discipline shall be directed to the Chief Judge and must be in writing. If the Chief Judge deems the conduct alleged in the complaint sanctionable, the Chief Judge shall appoint a panel attorney to investigate and, if necessary, support the complaint. At the same time, the Chief Judge shall refer the matter to a Magistrate Judge for all pre-disposition proceedings.

3. The Chief Judge shall appoint a panel of attorneys who are members of the bar of this Court to investigate complaints and, if the complaint is supported by the evidence, to prepare statements of charges and to support such charges at any hearing. In making appointments to the panel, the Chief Judge may solicit recommendations from the Federal Court Bar Association and other bar associations and groups. The Chief Judge shall appoint attorneys to the panel for terms not to exceed four years without limitation as to the number of terms an attorney may serve. The Court may reimburse an attorney from this panel whom the Chief Judge appoints to investigate and support a complaint in accordance with subsection (3) below ("panel attorney") for expenses incurred in performing such duties from the Pro Bono Fund to the extent and in the manner provided in L.R. 83.3(g).

4. If the panel attorney determines after investigation that the evidence fails to establish probable cause to believe that any violation of the Rules of Professional Conduct has occurred, the panel attorney shall submit a report of such findings and conclusions to the Chief Judge for the consideration of the active and senior district judges.

5. If the panel attorney determines after investigation that the evidence establishes probable cause to believe that one or more violations of the Rules of Professional Conduct has occurred, the panel attorney shall prepare a statement of charges alleging the grounds for discipline. The Clerk shall cause the Statement of Charges to be served upon the attorney concerned ("responding attorney") by certified mail, return receipt requested, directed to the address of the attorney as shown on the rolls of this Court and, if different, to the last known address of the attorney as shown in any other source together with a direction from the Clerk that the responding attorney shall show cause in writing within thirty days why discipline should not be imposed.

6. If the responding attorney fails to respond to the statement of charges, the charges shall be deemed admitted. If the responding attorney denies any charge, the assigned Magistrate Judge shall schedule a prompt evidentiary hearing. The Magistrate Judge may grant such pre-hearing discovery as deemed necessary, shall hear witnesses called by the panel attorney supporting the charges and by the responding attorney, and may consider such other evidence included in the record of the hearing that the Magistrate Judge deems relevant and material. A disciplinary charge may not be found proven unless supported by clear and convincing evidence. The Magistrate Judge shall report his or her findings and recommendations in writing to the Chief Judge and shall serve them upon the responding attorney and the panel attorney. The responding attorney and the panel attorney may file objections to the Magistrate Judge's report and recommendations within twenty-one days of the date thereof.

7. An attorney may not be found guilty of a disciplinary charge except upon a majority vote of the district judges, including senior district judges, that such charge has been proven by clear and convincing evidence. Any discipline imposed shall also be determined by a majority vote of the district judges, including senior district judges, except that in the event of a tie vote, the Chief Judge shall cast a tie-breaking vote. If the District Judge submitted the complaint under subsection (2) above giving rise to the disciplinary proceeding, that judge shall be recused from participating in the decisions regarding guilt and discipline.

8. Unless the Court orders otherwise, all documents, records, and proceedings concerning a disciplinary matter shall be filed and conducted confidentially except that, without further order of the Court, the Clerk may notify other licensing jurisdictions of the imposition of any sanctions.

(h) A visiting attorney permitted to argue or try a particular cause in accordance with L.R. 83.1 who is found guilty of misconduct shall be precluded from again appearing in this Court. On entry of an order of preclusion, the Clerk shall transmit to the court of the State, Territory, District, Commonwealth, or Possession where the attorney was admitted to practice a certified copy of the order and of the Court's opinion.

(i) Unless the Court orders otherwise, no action shall be taken pursuant to L.R. 83.4(e) and (f) in any case in which disciplinary proceedings against the attorney have been instituted in the State.

(j) The Court shall enforce the New York Rules of Professional Conduct, in construing which the Court as a matter of comity will follow decisions of the New York State Court of Appeals and other New York state courts absent an over-arching federal interest and as interpreted and applied by the United States Court of Appeals for the Second Circuit.

(k) Nothing in this Rule shall limit the Court's power to punish contempts or to sanction counsel in accordance with the Federal Rules of Civil or Criminal Procedure or the Court's inherent authority to enforce its rules and orders.

(l) If an attorney fails to respond or cooperate with any disciplinary investigation or proceeding conducted under these Rules, the Court may treat such behavior as a waiver of procedural rights, and impose discipline or take any other action as justice and this Rule may require, including suspension or removal of the attorney from the bar of the Northern District of New York without further process.